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Saturday, January 14, 2006

Sham Cell Pone Incident: Major indications of JTTF and NSA bungling warrant Judiciary review

At a time when the President needs to show "he's doing the right thing," the last thing he needs is the JTTF really screwing up a major breakthrough.

In light of the NSA warrantless surveillance, the entire situation warrants a thorough review by the Senate Judiciary Committee.

We outline our concerns and issues for the Committee's consideration.

* * *

The following discusses a "case study". It appears as though this entire situation has either been fabricated, or not properly let to "roam free."

* * *

Update 16 Jan 2006

Here's the key quote from the NYT which raises substantial doubts about the veracity of this report from Texas:
The law enforcement and counterterrorism officials said the program had uncovered no active Qaeda networks inside the United States planning attacks. Ref
The Texas report emphatically states that the FBI said the detained invididuals were part of a terrorist cell.

That's another way of saying, "The claim that there wer 10,000 Alqueda in the US was bullshit."

Despite 4 years of surveillance, fasctions, intrusion, abuse, the US finally admits: The basis for the DHS alerts, TSA harassment at the airports, and excuses JTTF gave for "not taking reports because we have higher prioritiees" was . . . [ wait for it ] . . .bullshit.

End update

* * *

Rather than allow the suspects "believe they got away," and "widen the net" -- thereby giving the JTTF/FBI a prime target for the FISA court to lawfully do what must be done -- this JTTF did the exact opposite.

This is not simply a blunder. It's a botched approach to doing what must be done. Bluntly, at a time when the White House "most needs" to establish some credibility with the FISA court, the DoJ/FBI SAC appears to have failed to effectively coordinate this response with the ASAC responsible for evidence gathering.

We judge, based on the bungling in the following case study, which the ASAC failed to effectively coordinate the response with counter-intelligence. Given the White House 'interest" in these matters, and the response which appears to be at odds with the White House's interests, we judge the entire incident/response is a fabrication.

Far greater payoffs could have been gleaned had the "suspects" quietly let roam free, thereby permitting the NSA and FBI to jointly appear before the FISA court saying, "We have a network and we want to watch it."

There is no merit to the argument that "the NYT" spilled the beans. Rather, based on the response to this incident, we judge the JTTF responses continue to fail to take advantage of what they can lawfully do -- collect intelligence.

The response to this situation shows a lack of effective coordination within JTTF, poor evidence handling, a failure to effectively trace the physical and visual evidence, and a failure to effectively coordinate the fruits of this incident with the NSA for purposes of remedy the self-evident credibly problem the White House, DoJ, and JTTF have with the FISA court.

* * *

Added: 15 Jan 2006 -- Key point

While you're reviewing this material, keep something in mind: JTTF has failed to provide the information in secret to the FISA court before disclosing it to the public.

The key question is: What information or assertions has JTTF, local law enforcement, or DoJ made -- in writing or the police reports -- that they know would not stand up to the FISA court scrutiny?

We believe the answer is: "Allegations the principles are connected to terrorism". Rather, given the JTTF has not presented this information to the FISA court -- the opposite appears true: The public claims about the individuals being "related to terrorism" can only be made if they are outside the FISA court; and not intended to be admitted as evidence.

Thus, given the lack of coordination with the FISA court, public revelations, and the assertions that have not been presented to the FISA court, we judge all the statements in the police report -- discussed below -- have one goal in mind: To be released "as if" it were a bonafide allegations, but without subjecting that allegation to the review of the court.

Bluntly, the following police report and commentary -- as it is outside the FISA court -- appears to be a "new way" for JTTF to issue press releases. It is another matter whether that information is reliable, accurate, probative, admissible, or credible.

End Addition: 15 Jan 2006

* * *

The incident involves a report of cell phone purchases at a convenience store. Reportedly, individuals were buying cell phones, and subsequently linked to terrorism.

Putting aside the larger management issues for the moment, the report itself is problematic. First, despite benign a federal investigation, local law enforcement has released information. It remains unclear why this information has not been protected. Bluntly, not withstanding the public assertions to the contrary -- because of the disclosures, we are more inclined to believe this is a fabricated story.

The first problem with the story: The cell phones. We know that communication has already been going on by couriers. Whether someone does or does not buy a cell phone after the NYT story hardly seems mentioning. It's well known that others are using couriers.

Second, notice the complaint number: 0512180004

The number means: 2005 12 18 -- Case number 00004.

This means by the 18th of December, they've only had 4 cases. No way.

It remains to be understood why only 4 complaints have been filed by after the midway point. This unusual report-number system warrants follow-up and explanation by local law enforcement.

Specifically, is the numbering system consistent with the workloads assigned to this police department; how is the caseload -- as evidenced by the small number of cases in the reported number -- compare with the actual number of cases forwarded to the magistrate for review.

We remain skeptical there is a consistency between [a] the reported caseload; [b] the actual number of cases forwarded; and the [c] number of cases independent auditors have reported while sampling the police department memos.

* * *

"Federal investigation" means the FBI has jurisdiction.

Why isn't the local police referring all questions "about the incident" to the Federal Agents, as the local police like to do?

Answer: We judge this is a designed leak, problematic in that it comes at a time when supposedly the President is engaging in a "war on terror" and NSA's Alexander would have the SIGINT community believe, "We're at war."

Curious that a local police department would openly disclose information that FBI should have suppressed; or at a minimum instructed local officials to make no comment on and ask callers to forward all questions to the FBI duty agent.

Based on these inconsistencies alone, we remain more confident the incident was fabricated, designed to be publicized, and is not a bonafide intelligence operation warranting NSA oversight.

However, we remain concerned -- that despite the possibility this is a bonafide incident -- the suspects' details were revealed, thereby compromising the nation's ability to do, as Alexander would say, "Wage war."

It remains to be understood to what extent, if any, local law enforcement has violated JTTF guidelines, or revealed sensitive information which the FISA court was created to review in secret. One cannot claim they are "for the rule of law" while at the same time leaking information which would be best optimized by the NSA.

Again, after 9-11 the "wall came down" -- so why isn't the fact that the "broken wall" is being used to leverage our intelligence, rather than disclosure it?

Again, either the "fallen wall" has not fruits -- and information that should be kept secret and passed to the NSA through the broken windows is not being put to use; or the incident is a fabrication.

We judge the incident is a fabrication; and remain concerned despite the "fallen wall" material information related to an ongoing investigation has been compromised, and has not been used by the NSA to target suspected terrorists.

Rather, because the information has been disclosed -- at a time when the NSA has a credibility problem, along with the White House unable to defend itself before the FISA court over unlawful surveillance -- we judge the incident is not bonafide, and merely evidence of a public relations effort.

However, even if the incident were real, the White House and DoJ at the Senate Judiciary Hearing on the NSA need to be called on the carpet to explain why this information was not protected; whether local officials have violated JTTF guidelines; why FBI agents have not taken control of all public communications; how the conduct of the FBI agents compares with the MAOP/Investigation Guidelines.

Based on the discrepancies, we judge the most likely problem is the incident was not bonafide; and/or the fruits of the search were compromised, rather than forwarded to the NSA and FISA court where lawful warrants could issue.

Because the FISA and NSA were not involved in secret -- and the information disclosed -- at a time when the White House wishes to create a defense for its actions involving the NSA warrantless surveillance, we judge the incident is either a fabrication or an example of a bungled legal defense of the White House.

Either way, the JTTF actions undermine the confidence the public has in the veracity of the President's statements; his truthfulness; or the ability of the nation to effectively coordinate its intelligence services to fight in open combat.

We judge the incident is most likely a fabrication and the Senate Judiciary Committee needs to assess this incident in light of the failed White House defenses over "inherent authority."

* * *

Let's return to the memo.

Six of them entered the Wall Mart, but they can only find "four" of them.

Get real -- Wall Mart has video tapes.

Why weren't they discussed? The report says a preliminary investigation was done, yet makes no mention of the store tapes, or efforts to track these other individuals.

The fact that there are "four in custody" is not reassuring. Why is the DoJ sending a message of, "We have people in custody, but have no way of finding their accomplishes?"

It remains to be explained by the Special Agent in Charge why these details were revealed; and what effort, if any, was done to use the known 4 suspects to link them to their accomplices through subsequent/non-custodial communication with the alleged co-conspirators.

We judge, based on the information only in the memo, that the officers failed to effectively determine the best method to find the other two suspects. It remains to be understood why the officers chose to disclose the information of what happened; but apparently made no effort to secretly monitor one or all of the freed suspects.

The facts are clear. The FBI was not concerned about "this incident being known" -- so there should have been no reason why the suspects could not have been freed. The fact that two or six are running around would be irrelevant. It is troubling that the FBI and local law enforcement chose to release information, but not the well-monitored-suspects.

Because the FBI and local law enforcement appear to be more interested in revealing information than in releasing monitored-suspects, we judge the incident is a fabrication.

However, if the incident is real, then it remains to be understood why the FBI was quick to get involved, but slow to suppress public release of ongoing investigations; and why despite the FBI involvement, the counter intelligence officials were not consulted prior to releasing the information.

Perhaps it is both and the FBI despite a fallen wall is simply bungling -- something the White House and Grand Jury would not agree with when it comes to issues of indictments and scooter Libby.

FBI agents are not this reckless. They may be stupid and insecure people, but they know well enough to keep information secret. Or are we to believe that classified information is regularly leaked? Curious, despite the FBI I-drive problems, SAIC contract issues, and the Brady violations, the FBI has a hard enough time keeping track of what it does know, much less what it doesn't.

Again, the problem is the FBI -- at a time when the White House most needs support -- is sending a signal that it is most inept. This may be true, but this should give the White House staff -- already under siege over the Iraq WMD issues -- more time to shudder.

* * *

Let's consider the incident again. We're told there were sixty cell phones recovered -- that means there were other purchases.

So, if they have enough time to make other purchases, why did the FBI/Local police reveal this?

Answer: This isn't intended to discourage the purchase of cell phones -- it's designed to alert employees to report those who purchase cell phones.

Revealing this information to the public -- rather than the FISA court -- shows the FBI was more concerned with public consumption than with getting the NSA to track these people using a lawful warrant.

But, what would we expect from the bungling in the JTTF -- they regularly lie about their statue, and then deny they lie. Small problem when they deny knowing the person they previously said they told the truth to.

JTTF has a hard time keeping a straight story because the better trained officers are in Iraq, and the stupid ones are tripping over themselves creating excuses not to respond to calls and ignore the complaints.

Thus, given the "fast response" to a fairly benign cell phone purchase -- we judge the response time is at odds with what law enforcement is most likely willing to do.

Again, we remain confident the officers involved, if this actually occurred, will be able to explain why they were "so concerned" about cell phones to call the FBI; while at the same time willing to talk about information they should have known was the subject of an ongoing federal investigation.

The disconnect is telling.

* * *

Think of this: They have 60 cell phones. Why didn't the FBI quietly find out which numbers were being used and target those directly?

Hay, they've got a license plate, why not let these guys roam around -- make them think "nobody notices"?

* * *

The fat that the local police are discussing a matter that they report is a "federal" matter is a major problem.

* * *

How did the Wall Mart staff have enough time to:

[a] Notice these people

[b] Let them walk to the cash registers

. . .

but the police -- not alerted to a threat -- arrived fast enough. At 12:30 in the morning.

* * *

They'd already purchased "a large number of cell phones" [doubtful] and "put them in the car" --

This means they bought the phones at other locations -- where are those store-video pictures of all six?

We have no information because its most likely there was no other store; and there are not other video tapes.

* * *

If this was "such a problem" why would the officers disclose the exact phone style? Supposedly, the officers are trying to "do the right thing" -- so why is law enforcement revealing the details of what people are or are not doing?

Not credible that this is a bonafide report -- but they're revealing details of specifics. This should have been clouded so the government could "not tip off" those it is tracking.

OK, so they'll switch to another type of phone.

* * *

Based on the above, reasonable law enforcement would have said, "OK, we've got some info -- we can go to the FISA court -- let's let these guys go, and monitor what they are saying."

But they shut it down.

That's stupid. They would have gleaned far more if they'd physically tracked them; monitored their calls; and gathered more evidence.

The fact that they have the cell phones -- if this means anything -- means their spending their money on cell phones, and not bombs.

Brilliant -- so if you want to track these people -- and watch their cash withdrawals -- why not let them roam around, buy bomb making material, and then throw it on the table for the court so everyone can see?

But they didn't do that.

* * *

"Actions observed by the officers" at the outset prompted a call to the FBI. So, what happened to the other two?

"Oh, they just disappeared". . .get real. A story like Wal Mart has well lit parking; and letting the "other 4" go would've allowed them to find the other two.

Yes, they were going to link back up again -- so why not use this incident as a major way to show "how the FBI can find people".

But the FBI consented to having this law enforcement office reveal the details.

* * *

If the people were "linked to suspected terror cells" -- why reveal this? Why not keep this quiet, go to the FISA court, and say, "We've got an issue here -- we'd like to target the NSA intercepts after this entire thing."

On the other side, if the NSA monitoring is going on -- and they are intercepting phone calls who are not using intercepts -- then how did these people "get out of the FBI/NSA" net?

Answer: It's likely that the NSA monitoring is not well tailored to "bonafide" suspected terrorists.

* * *

Why is the local law enforcement "reporting" what the FBI agents "reported"?

* * *

How many FBI special agents arrived--what were their names; how long after the initial call to LE did it take to notify the person -- who was taking in combing calls at the FBI desk -- to take action?

How far did the FBI agents have to drive from their starting position to the Wal-Mart?

Where are the pictures of the suspects?

Where are they current being detained?

How did they enter the United States "illegally"?

What is the connection of these individuals to the US government?

What type of training did these individuals have by the US government?

If this report is "revealed" -- where are the "other reports" from "all over the nation" of the "big cell phone purchases" in December 2005?

* * *

Congratulations, based on the above, we have evidence of:

1. JTTF, FBI, and local law enforcement leaking information

2. Using "crime report numbers" that are no consistent with the day of the month;

3. Have captured and detained people who may have been of greater use had they been let "roam free"

4. Openly discussed information that the FISA court may have found interesting to review in private

5. Failed to provide the FBI agents the needed information to "show the FISA court that the FBI can be trusted" to provide credible affidavits

6. Interfered with an ongoing movement of personnel, equipment, and other to-be-determined support equipment -- and failed to let them roam free, letting NSA monitor their calls using a bonafide warrant issued under FISA.

* * *

At a time when the President most needed to show "we're doing the eight thing," the FBI and local law enforcement have done everything to keep this case out of FISA, not adequately coordinate the approach with NSA, and failed to ensure this incident could have been a case model of "how well the FBI can work with the FISA court to get a lawful warrant to monitor NSA calls."

Based on the major disconnect between [a] the president's failure to lawfully get warrants; and [b] this "prime" situation which the President could have secretly used to show "he can do the right thing" and "we will work with the FISA court" this DoJ and JTTF did exactly the wrong thing.

Major blunder, and a sure sign that the White House fully expected the legal excuses given to Congress to be accepted; and shows a major disconnect between "what the White House says it is lawfully doing" and hat the JTTF are in a position to support, without tipping off the "enemy" what we know; how we know it.

Rather, this JTTF revealed details, failed to use the FISA court, and failed to let the individuals -- who were known -- later link up with the "accomplices" that might have broken the entire "terror cell".

Rather, JTTF decided to "break the story" and "let everyone know" what was going on.

This makes no sense.

* * *

Where was FBI/DoJ counter intelligence?

Who made the decision to detain these people?

How was it determined there were "immigration violations"?

Which ASAC was on duty that was responsible for evidence gathering?

How were the White House "concerns" with the FISA court integrated with the DoJ and NSA incident management?

Why have JTTF guidelines -- against revealing the details of an ongoing investigation -- revealed?

Why is the local law enforcement revealing details of an incident which the NSA and FBI counter intelligence have primary jurisdiction?

How were the "lessons of the FISA court" integrated into how the FBI's ASAC gathered evidence, chose to investigation/not investigate matters?

Why was this information accepted, while other similar incidents were rebuffed?

What "about this incident" prompted the "attention" to generate a "concern" that the FBI "needed to be called" -- yet at the same time, nobody bothered to discuss the possibility with the US Attorney of "letting them walk" and "using NSA to track the wider connection"?

At a time when the Congress and Judicial branch are at the throat of the White House, DoJ, and Attorney General, why wasn't the above incident presented to the FISA court in secret, and lawful warrants issued to show: "We can lawfully do the right thing, and the FISA court can trust us?"

Who made the decision in counter intelligence "not to plant a tracking device" on their car and let them "roam free" while they engaged in the "Wider net"?

Who in the DoJ counter intelligence division failed to discuss with their "close friends" being the "newly fallen wall in CIA/NSA" that we have a "real good chance of busing open the entire terror cell" -- and it would be "really smart" if we said nothing, letting NSA track them, and gather evidence for the FISA court so that we might renew our destroyed credibility with the American public?

Given the clearly known evidence, legal, and coordination issues -- this story does not add up. Nothing about it warrants serious consideration.

If this is true, then we have a far larger problem on our hands: The FBI knows about people, could have planted a tracking device, and could have silently intercepted the phones that they had -- and reintroduced them into the "terror cell network" -- all the White the NSA and CNN could listen live to the entire "big conspiracy."

That didn't happen. And that smacks not simply of a bungle, but a failed PR program to "make the public think" the problem is with the NYT.

Wrong. The problem is -- if this story is true -- why NSA, DoJ, CIFA, and JTTF did not coordinate this plan -- silently let the phones go back into the system, and fully coordinate this in secret with the FISA court.

On all counts, the agents -- at a time when the White House most needed otherwise -- did the opposite.

And what's happened? The local law enforcement issues a written statement to the media.

This makes absolutely no sense, especially when so many people are saying, "They're not using cell phones" and "they're only using couriers."

DoJ and the JTTF should be hauled before the Senate Judiciary Committee and made to explain: Why at the time when your credibly is so low before the FISA court have you supposedly done something that is reckless, stupid, and fails to take advantage of something?

The answers will likely make no sense -- because this entire incident makes no sense.

If it is true, then we have far larger problems than whether people are buying cell phones, but whether -- when given a golden nugget -- the FBI's Counter Intelligence Units can effectively coordinate an approach with NSA and the FISA court.

At first glance, this entire episode warrants a close investigation by the Senate Judiciary Committee:

  • A. What really happened

  • B. Who made the decisions

  • C. How were the issues of tracking considered

  • D. Why detain people who might have been more valuable if they were let wander

  • E. How were the problems with the NSA/FISA court issues factored into counter-intelligence decisions to let people go/monitor them/and gather more intelligence

  • F. Why go through the trouble of "coordinating with the FISA court" at the Monday classified briefing about 'technology' -- when an incident like this could have been thrown down on the table as, "Look at what we've got -- it's all secret, we'd like to let them run, think they got away with the cell phones, and catch more people."

  • G. Why didn't the FBI's counterintelligence -- that supposedly "knows what is going on with the undercover ambassadors from all over the world living in DC -- get involved, and made a decision to leave this: Let these people become a high profile counter intelligence peroration, and round up the wider net?

    All the above questions yield answers that make the FBI, NSA, and DOJ look like complete morons.

    America, we are in trouble: They had the chance to "really make their case' but they fell down, tripped on themselves, and have done nothing to warrant the FISA courts confidence. All they can do is point to the "big mystery of technology" and cannot provide evidence that would massively sway the public: "We're doing the right things."

    This case, if it is true, is evidence of major bungling, poor coordination, and a failure of the FBI senior leadership to timely make a decision to let them run, and gather more intelligence for the FISA.

    It looks like the DOJ has failed to serve their President with what he most needs -- and given him more bad news: "We're idiots."

    * * *

    Added: 14 Jan 2006 [Cross posted . . . ]

    Contrast the above with what the JTTF is doing. One of the curious things about the NSA domestic monitoring is how it is used.

    Putting aside the legal requirements of FISA aside -- and the issues of whether the President will be impeached -- there is a curious contrast.

    At times when the country supposedly has "people running around warranting NSA-monitoring", the DoJ appears to have done the opposite.

    This is an anecdote showing, despite the "capability" for the NSA to do monitoring, rather than let potential suspects roam under the close eye of the FBI counter intelligence, the DoJ and JTTF are disclosing details.

    It remains to be understood why this incident is handled in such a different manner, and there are many questions which warrant a better understanding by the Senate Judiciary Committee.

    The way the incident has been presented raises serious questions about the way the US government is leveraging its resources. A far more prudent strategy might be to do what the NSA says it can do. Sadly, despite this capability, JTTF and the FBI appear more inclined to fabricate ruses, than in letting the NSA do its work.

    The inconsistency between the above article -- over what the NSA can and cannot do -- is at odds with what the DoJ isn't doing: Actively using the information gleaned from lawful arrests to then present this information to the FISA court for purposes of lawfully targeting NSA surveillance.

    The failure of the FBI to do this, combined with the failure to keep this "incident" a secret tells us two things. Either the FBI counter intelligence is so bungled that it cannot coordinate information to redeem itself before the FISA court; or this entire incident was fabricated.

    Either way, the incident warrants a full understanding by the Senate Judiciary Committee: Whether the problems with the FBI counter intelligence are as pervasive as this incident appears; and despite the White House problems, is the FBI still unable to glean useful information to show the FISA court it is capable of engaging in prudent and lawful domestic surveillance.

    The incident leaves one to question the effectiveness of America's counter intelligence efforts and their leadership in the Department of Justice.